Wrongful death lawsuit against Las Cruces police now in hands of federal judge

LAS CRUCES — After three days of trial, the outcome of a $14 million wrongful death suit filed by the family of a samurai sword-wielding man shot and killed by a Las Cruces Police officer rests in the hands of a federal judge.

U.S. Magistrate Judge Gregory B. Wormuth said after the bench trial's proceedings wrapped up Thursday he would render a verdict "as soon as possible" whether the police officer justifiably shot Lance Hummell in July of 2010.

No time frame is set for Wormuth's verdict, an attorney representing the city said, adding that a determination could come between "10 days and six months."

The final day of testimony drew a large contingent of spectators, many from LCPD. City Manager Robert Garza and LCPD Chief Richard Williams watched, attentively, the entire trial from the defendant's table.

Hummell, a 23-year-old known as "Lizard Man," died shortly after LCPD officer Horacio Rivera shot him four times with an AR-15 rifle that summer. Rivera has said Hummell "lunged" at him and the other responding officer, Dennis Camp. The District Attorney's Office cleared Rivera and Camp of criminal wrongdoing.

In his lawsuit filed in 2011, Hummell's father alleged "gross negligence" by LCPD and civil rights violations.

Attorney Damian Martinez, who represents the city, said in his closing statement, "The evidence doesn't show (Rivera) acted unreasonably." In shooting Hummell, Martinez said, Rivera acted as "any other officer" would in that situation.

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Bolstering that opinion Thursday was Jack Ryan, the defense's expert witness. Through more than two hours of testimony — the longest of any witness in the trial —Ryan laid out why he thought a properly trained Rivera lawfully shot Hummell.

Ryan, a former Rhode Island police officer with a law degree who trains officers through an Indianapolis company, said Hummell made an "extremely aggressive move" by drawing his nearly 4-foot sword in the presence of officers after he exited his car in the parking lot of his apartment complex.

That contradicted the opinion offered by retired local lawman Robert Jones on Tuesday. Jones, a former captain in charge of internal investigations at the Doña Ana County Sheriff's Department, said the shooting was unjustified because of Hummell's lack of aggression in his movement toward the officers — "one step," as Jones often repeated in court.

Called Thursday to the stand again, Jones reiterated his opinion, adding that carrying a sword is "not a crime."

Hummell family attorney James Lyle has argued that Rivera did not adequately try to pacify the situation or give Hummell reasonable time to comply with orders before shooting him.

Endorsing Rivera's actions, Ryan said the officers' commands to Hummell, the raising of their weapons and their mere uniformed presence were attempts to show force. Ryan added that by stepping at the officers Hummell did not allow Rivera to grant him time to comply. Ryan said the speed of Hummell's step was insignificant.

In his closing statement, Martinez said Hummell's family wants to "blame" LCPD officers and the city for his death, but that Hummell made the police "unwitting participants in his suicide."

Martinez showed photos of suicidal text messages Hummell sent to his girlfriend, suggesting he would resort to "death by cop" — provoking the officers to shoot and kill him. Tapes revealed that Hummell made the 911 call, reporting an unidentified man with a sword outside his apartment.

"You can't just blame," Martinez said. " ... They have to prove that Horacio Rivera and the city of Las Cruces acted unreasonably."

At one point in his testimony, Ryan said proper training teaches officers that "it is the subject that always makes the decision" on the level of force applied by police.

When it came to Hummell, argued Lyle, LCPD didn't allow for that choice.

"Lance deserved a chance," Lyle said Thursday in his closing statement. "He never got one."

That opinion seemed to serve as the foundation of Lyle's case. Eye witnesses Lyle called and Jones said Hummell didn't have time to comply to officers' commanding him to drop the sword, which made multiple appearances in court.

Lyle argued that the distance of the officers — which was disputed in court — and Hummell's tame movements did not justify shooting.

Lyle also criticized the investigation into the shooting and LCPD's response after a study of the department criticized its use-of-force practice and policies.

More than once, Lyle mentioned that Rivera has had 24 use-of-force complaints filed against him — a high number, according to Jones — and received no sanctions from those. Rivera has been involved with three shootings. Including Hummell, two people died at his hand.

Jones said Tuesday that the number of complaints against Rivera without punishment showed problems at LCPD. Wormuth, in an order filed Wednesday, said he would not consider that aspect of Jones' testimony because Lyle didn't appropriately divulge that to the defense.

Still, Lyle argues, it comes down to Rivera having a quick trigger and not giving Hummell time to respond.

"You have to give people that chance," he said. "Not because it's the law, but because it's right."

James Staley may be reached at 575-541-5476. Follow him on Twitter @auguststaley